THE COURT: You got another witness you can do in five minutes?
FOGLEMAN: Five minutes? Let me see if I...let me see.
----------------
PRICE: Judge, if I could approach?
(BENCH CONFERENCE)
THE COURT: Tell him what I said.
FOGLEMAN: Uh -- I didn't --
THE COURT: Okay.
DAVIS: You mean you don't want him to mention the 'P' word?
THE COURT: Yeah.
PRICE: Okay, that's what I was gonna ask. And that he's a "P" word person.
THE COURT: Yeah.
DAVIS: Is that what you told John?
THE COURT: Yes.
(RETURN TO OPEN COURT)
THE COURT: Do you swear to tell the truth, the whole truth and nothing but the truth, in the matter now pending before the Court, so help you God?
DURHAM: Yes, sir.
PRICE: Judge, if we could approach for just a minute?
(BENCH CONFERENCE)
PRICE: Judge, there's a, there's a notation during the statement that Mr. Durham took of my client that indicates that after a short period Mr. Echols ceased to deny his involvement, which is an admission through absence of denial.
FOGLEMAN: We're not going to ask him about it, admission through absence of denial.
PRICE: Okay.
THE COURT: A tacit admission maybe.
FOGLEMAN: We're not gonna ask him about...
PRICE: That's fine. That's fine.
DAVIDSON: Because that would play on his right not to...
PRICE: Alright, that's fine.
THE COURT: Yes, I agree.
FOGLEMAN: Let me ask you something. Just so I can get through the rules, because I don't want to mess up anything here. Is it all right for me to ask about him denying his involvement or not?
THE COURT: Yeah, I think, did it, was he mirandized?
FOGLEMAN: Um-hmm.
THE COURT: And did he give a statement?
FOGLEMAN: Um-hmm.
THE COURT: Well yeah. Sure. You can say what he said but you can't talk about actions --
FOGLEMAN: Right.
THE COURT: -- such as silence being an admission.
FOGLEMAN: Right. I think that Detective Durham understands that.
(SOMEONE FLIPPING PAGES)
THE COURT: You aren't questioning the fact that he gave consent to give a statement and waived his rights and gave a statement?
(PRICE AND DAVIDSON MUMBLE TO EACH OTHER)
DAVIDSON: Not on this incident.
THE COURT: Alright.
PRICE: Judge, there, there's not a typed transcript of this statement, just some notes that have been typed up.
THE COURT: Well, that's not - not - not always the case in any event. I mean, apparently you got whatever notes the officer has, I guess. There's not any reference to the co-defendants?
(MUMBLING)
DAVIS: Oh, you're talking about the questionnaire.
FOGLEMAN: Yeah. You want to make reference to that?
DAVIS: Uh-uh. Not at this time.
FOGLEMAN: Okay.
PRICE: To what?
FOGLEMAN: The questionnaire.
PRICE: Uh -
FOGLEMAN: Not at this time. Not at this time.
PRICE: Judge, there's also a reference in here that after talking to my client, denying involvement in the murders after 45 minutes, Mr. Durham asked him, what was he afraid of? And he replied, the electric chair. And then he said he liked the hospital in Little Rock. And then he states that he'd been treated for manic depression. We certainly object to that.
THE COURT: On what basis?
PRICE: Well, the fact about him being treated for manic depression is certainly not relevant at this point in this proceeding. And the fact about him being asked was he afraid of the electric chair.
THE COURT: I think that is admissible. If it was under, after he was advised of his rights and he waived them. That's a statement he made after being advised of his rights. I think it's fair game. But not the fact that he didn't respond. You know, I'm not going to let an officer say that 'well, when I asked him did you do it, he was silent.'
PRICE: The report summarizes a 45 minute conversation in two lines. The subject denied any involvement in the crime. After approximately 45 minutes I asked the subject what he was afraid of and he replied the electric chair, and then question, then this reference about being in the hospital in Little Rock which was pursuant --
THE COURT: It's admissible.
PRICE: The hospital in Little Rock also? Which was pursuant to a juvenile court order, a FINS petition?
DAVIS: Your client made the statement. I don't know if we want to bring that up anyway.
THE COURT: About the hospital in Little Rock, were you gonna bring that up? I'm gonna, I'm gonna sustain your objection to the hospital portion.
PRICE: What about the electric chair?
FOGLEMAN: You understand that? I don't know if my, I don't know if Bill heard it. Could you tell the witness, your Honor? Or how do you want to do it? I don't know if he heard what he can say and can't say. It's not gonna be a very long examination. I don't know about the cross-examination, but I'm only planning on asking a few questions but I don't --
THE COURT: Well, you've got to establish that he was mirandized, that he waived it and that he denied --
FOGLEMAN: Well, if they're not objecting to it, I mean, I guess I can do that in front of the -- well, if they were gonna object I wasn't gonna go through all that.
THE COURT: Well, I think you can do it one, two, three, four. Basically, you're going to get into the business about the electric chair and that's about the extent of it, isn't it?
FOGLEMAN: About what?
THE COURT: The electric chair.
FOGLEMAN: Well, that and the fact that he said that if he'd, he would tell us all about it if we'd let him talk to his mother.
DAVIDSON: No, that's --
PRICE: We, we object to that, your Honor. It's an implication of your Fifth Amendment rights.
DAVIDSON: Your Honor, I --
THE COURT: Alright, I can't get on. Alright ladies and gentlemen, you can have another fifteen minute recess with the admonition not to discuss the case.
(COURTROOM NOISE AS PEOPLE LEAVE)
FOGLEMAN: This witness ain't gonna be very long.
THE COURT: He'll be real short probably. Let me see that. I mean, have you got written down what you plan to ask him?
FOGLEMAN: Well, no, I've got...got a quote mark down there, that...
THE COURT: What are y'all talking about, asking the questionnaire that was used in this?
FOGLEMAN: What I was going -- no, there was a questionnaire that was used to ask a bunch of questions, we'll get to that later. But --
(INAUDIBLE SIDE CHATTER AND COURTROOM NOISE)
UNKNOWN: What?
DAVIDSON: She can't hear you now.
FOGLEMAN: I know. I know.
(CHATTER, NOISE)
THE COURT: Okay, let me take a recess.
FOGLEMAN: Okay.
(TAPE STOPS)
FOGLEMAN: Can you hear me, Barbara? Whether he had questioned the defendant Damien Echols, that he at first denied his involvement, uh, did he, did Detective Durham ask him what he was afraid of, what was his response, and then ask him, uh, did he at some point -- or what if anything did he say about telling you anything and then Detective Durham would respond with what Damien Echols said which was, 'I'll tell you all about it if you'll let me talk to my mother,' and then we were going to end there.
THE COURT: And what is your theory of why that's not admissible?
DAVIDSON: Could I see that? Is this --
THE COURT: I think I might let him say the comment on the hospital, but not the paraphrase that he was being treated for manic depression illness.
DAVIS: Uhh, we may stay away from the hospital.
FOGLEMAN: Yeah, we're gonna stay away from the hospital.
THE COURT: Stay away from that altogether?
FOGLEMAN: So don't say anything about the hospital that he said.
PRICE: Judge, we submit that our, he requesting to talk to his mother and by talking to his mother that that's an exercise of his constitutional rights and --
THE COURT: Well, if they, did they ask him any questions after, beyond that?
PRICE: And again he denied being involved in the murder.
FOGLEMAN: Well, your Honor, if he had been a juvenile, I would agree asking for your parent would be equivalent, but this is an adult.
THE COURT: Well, but I mean, even if it were an adult, if they said instead of talking to my mother, I want to talk to my lawyer, I mean, uh...
FOGLEMAN: Well, they did ask questions beyond that, but we're not gonna ask anything beyond that point.
DAVIDSON: Was, was this the day that Mike Everett was beating on the jail door and they wouldn't let him in because they said he would have to do that?
FOGLEMAN: I don't, I'm not sure about that.
DAVIDSON: Or was that the next day?
FOGLEMAN: I'm not sure about that. I can't honestly say.
DAVIDSON: If that comes up, if that comes up, then we need a Denno hearing on whether or not --
FOGLEMAN: If what comes up?
DAVIDSON: If you're gonna ask him. It is that day?
PRICE: Yeah, it's the day.
DAVIDSON: We need a Denno hearing on that. Gonna go get Mike Everett here.
FOGLEMAN: Well why haven't we done this before?
PRICE: We submit that Mike Everett was banging on the door requesting to talk to Damien Echols and he had informed the police that he was representing Damien Echols and the police did not allow Mr. Everett to talk to Mr. Echols in violation of his constitutional rights.
THE COURT: Well...I...
FOGLEMAN: Only an adult, an adult can only exercise his own constitutional rights. Somebody else can't exercise it for him and he never requested an attorney.
PRICE: If a lawyer is banging on the door (KNOCK, KNOCK, KNOCK) to say 'I want to talk to my client' and the police don't let him do that, that's a violation of his rights.
THE COURT: Did they not let him talk to him?
PRICE: That's the Finley (PHONETIC) case, Judge.
THE COURT: Did they not let him talk to him?
FOGLEMAN: Well, show it.
PRICE: Yes sir. That's correct. They did not let him talk to him.
DAVIS: I'm not sure --
FOGLEMAN: I would like to see the Finley case.
PRICE: Sure.
THE COURT: I'm, I'm familiar with the Finley case.
DAVIS: ...but I'm not sure that's what it says.
PRICE: That was the case that Ed Berry (PHONETIC) called up the police department and said, don't, I don't want Finley talking to anybody and they still talked to him and didn't get him the message and your Honor --
THE COURT: But that's not the same facts here.
PRICE: Yes, sir, Mike Everett was knocking on the door when he was being questioned by the officers, saying 'I want to talk to my client, I want to talk to Damien Echols, don't talk to him.'
DAVIDSON: Stop questioning him.
PRICE: Stop questioning him.
DAVIDSON: They wouldn't let him in the jail.
DAVIS: But the, the question I've got is Judge, how long, when was that thing sent to the defense counsel and how long has there been a supression motion filed and why in the world didn't somebody ask to have a hearing on it before we're sitting here in the middle of trial.
FORD: You carry the burden of proof, you should have asked for the hearing.
DAVIS: Oh bull.
FORD: No no no. The State carries the burdens on all in custodial interrogations presumed involuntary. You carry the burden.
THE COURT: You remember anything about Mike Everett knocking on your door? (TO DURHAM)
DURHAM: (INAUDIBLE)
DAVIS: But I mean --
FORD: ...you're the one who should have had the motion filed...
DAVIS: Sure, Paul.
FOGLEMAN: Your Honor, I, I understand Mr. Everett was there, but it's my understand -- you know, when, when he arrived there in relation to the whole thing, I don't know. But, Damien Echols never requested an attorney. He was advised of his rights, waived his right to an attorney, talked to the officers, uh, Damien's mother went out -- and he's eighteen now -- Damien's mother went out and got Mr. Everett to come up there.
THE COURT: And then he was allowed apparently to talk to his mother and Mr. Everett was there --
FOGLEMAN: Well no Mr. Everett -- in fact Mr. Everett wasn't there yet when he talked to his mother.
THE COURT: Wasn't even there? Mean he wasn't even there when this was taking place?
FOGLEMAN: Not --
PRICE: We submit that he was and we request a Denno hearing.
FOGLEMAN: Well if he was allowed to talk to his mother, Mr. Everett wasn't even there when he was allowed to talk to his mother.
DAVIDSON: I think Mr. Everett was there knocking on the door but they wouldn't let him in.
PRICE: We request a --
DAVIDSON: The way I understand it.
THE COURT: What time did Mr. Everett tell you he got there?
DAVIDSON: I don't remember --
PRICE: I don't specifically remember at this time.
THE COURT: Alright, we'll do that Monday morning.
FOGLEMAN: Well, your Honor, what does the Finley case say?
THE COURT: Well basically, as I remember the Finley case --
FOGLEMAN: And how can it be his attorney if he doesn't hire him?
THE COURT: Well...
PRICE: That's exactly what this --
DAVIS: But the one thing that was different in Finley, though, because they, because Ed Berry called him up on the telephone and he had him repeat aloud over the telephone to the police officers 'I am not, I do not want to talk with anybody until I talk with my attorney' and he repeated that --
FOGLEMAN: It's completely different.
THE COURT: Yeah, it's, it's a different...
DAVIDSON:...because we don't even get to that issue because they won't let him in the damn door.
FOGLEMAN: Well an attorney can't solicit people.
PRICE: He was not soliciting. The State, the State made that same objection in the Finley case by arguing 'well, if Mr. Finley hadn't been hired and he hadn't been appointed, he's not his lawyer.' The Supreme Court said no, that's wrong.
FOGLEMAN: Well he had had personal contact with him about it.
(MUMBLING)
THE COURT: That's what I just said I was gonna do.
PRICE: That'll be fine, your Honor.
FOGLEMAN: This is gonna take a half a day.
THE COURT: Get Mike on up here.
FOGLEMAN: You know, I thought that we had something, that's why we had all those hearings all along, so we'd take care of all this.
THE COURT: Well...
DAVIS: In fact, when we had the last batch in Osceola did y'all not even go because you didn't have anything to be heard?
PRICE: Not at that time.
DAVIS: I mean, this motion is on file, right?
PRICE: That's right.
THE COURT: Well, you all know whether or not Mike was there at the time this interview was being --
PRICE: It's our understanding that he was, your Honor. We'll be glad to have him here Monday morning.
FOGLEMAN: I just don't see how somebody else can -- without having any contact with the person just out of the blue come up there, hear somebody's under arrest and go up there and say 'don't talk to him. I'm his attorney.'
PRICE: He had been contacted by his parents and requested to go up there.
FOGLEMAN: If it were a juvenile, I would agree. But this is not a juvenile.
WADLEY: People call me all the time and say 'will you go up to jail and talk to my... I want to hire you for my son.' And I go out there and talk to 'em.
FOGLEMAN: But the relationship is between the attorney and the client.
THE COURT: Sounds to me like they were already talking to him at that time that Mike got there.
PRICE; But if in the middle of the conversation, if Everett's there, and the police did not let him talk to him...
FOGLEMAN: I think that if the guy waived his rights --
THE COURT: Well I can tell you right now what my ruling will be. Is that if Mike got there after he had done the polygraph and before those questions were asked, it's clearly admissible.
PRICE: But if it's in between that time --
THE COURT: Well...
PRICE: Which, obviously, is a factual question and we only have a one page report containing approximately three hours of questioning.
THE COURT: It's all in when Mr. Everett got there. What time did he get there?
PRICE: Well, we don't know specifically. We're gonna put that on on Monday.
DAVIS: Well it seems to me like it's gonna be awfully hard for Mr. Everett to describe when he got there since he does --
WADLEY: He, he, he's saying it's gonna be hard for Mr. Everett to do?
FOGLEMAN: Well how's Mr. Everett gonna know what happened in the back room?
WADLEY: Fine.
FOGLEMAN: He's not.
WADLEY: Can we have a hearing on it, your Honor?
THE COURT: Yeah, I already said that.
PRICE: Yeah. Thank you, your Honor.
THE COURT: Just recess. Get that Finley case. I don't think it's applicable to these facts at all.
DAVIS: The Finley case was (INAUDIBLE)
THE COURT: Yeah.
DAVIS: I don't remember the details.
UNKNOWN: If you get a chance, could you come up there?
THE COURT: Huh?
UNKNOWN: If you get a chance, come on up there. If you get a chance.
THE COURT: Yeah, I will. Alright, I'm gonna recess. Alright, Court'll be in recess until Monday morning at 9:30.
